The Unfairness Doctrine

Conservative talk radio is the most potent political weapon in America. Millions listen every day for news and opinion that they can’t get from the liberal mainstream media. And those millions — people from all walks of life in every state, city and town — do more than just listen: They vote.

Liberal talk radio has been a huge failure. “Air America” — the liberals’ flagship network — filed for bankruptcy in 2006 after only two and a half years of broadcasting. Now, because they’ve taken control of the White House as well as Congress, Democrats are planning to re-impose the mis-named “Fairness Doctrine” to kill conservative radio. President Reagan did away with it in 1987. But now, the liberal control of both sides of Capitol Hill, along with a compliant Obama Administration, may bring it back from the ash heap of history.

It’s Not About Fairness: It’s Censorship

Let’s call it what it really is: The “Fairness Doctrine” is not about fairness. It’s about censorship. It requires radio broadcasters to air — at their expense — opposing views whenever they broadcast any attack on some political figure or policy.

The Censorship Doctrine would require conservative talk radio to spend a large part of its time praising liberals and their ideas. If it’s revived — and from the comments of key Congressional leaders, we have to conclude they’re going to fight to get it — it will be a direct attack on Americans’ constitutional rights to Free Speech and Freedom of the Press.

Can you imagine what talk radio would sound like if every time a host talked about the newest liberal outrage, he then had to give the liberals equal time? Somehow, we can’t believe that the Rush Limbaugh, Laura Ingraham and Sean Hannity shows will be better if they’re co-hosted by Susan Estrich, Dennis Kucinich and Michael Moore.

New York liberal Democratic Sen. Chuck Schumer thinks conservative talk radio is the equivalent of pornography and should be regulated in just the same way. Schumer said recently:

“Do you think we should allow people to put pornography on the air? Absolutely not. Particularly on television and radio.… The very same people who don’t want the Fairness Doctrine want the FCC to limit pornography on the air. I am for that. I think pornography should be limited. But you can’t say government hands off in one area to a commercial enterprise, but you’re allowed to intervene in another. That’s not consistent.”

To liberals such as Schumer, conservative talk radio is political pornography. The only real difference is that Schumer & Co. would like to see more censorship on conservative talk radio than on real pornography. Schumer’s remarks show how frightened liberals are by the power of conservative talk radio.

Conservatives, of course, also recognize this power. In an exclusive interview, former House Speaker Newt Gingrich told HUMAN EVENTS why the House Republicans made Rush Limbaugh and Michael Reagan honorary members of the Congressional Class of 1994:

“Rush Limbaugh,” Gingrich said, “was the leading educator of American taxpayers and conservatives in the early 1990s. His voice, his courage, his convictions mobilized millions of voters who turned out to vote for the Contract with America and created the first Republican House majority in 40 years. We stood on President Reagan’s shoulders and were propelled by Rush Limbaugh’s voice. And that is why Michael Reagan and Rush Limbaugh became honorary members of our class in 1995.”

Democratic Party leaders support re-imposing the Censorship Doctrine and are planning to revive it soon after President-elect Obama is inaugurated. Asked if she supported it, House Speaker Nancy Pelosi said, “I always have.”

As The Washington Times reported in November, “Senate Majority Whip Richard J. Durbin of Illinois, House Speaker Pelosi of California and Senate Rules Committee Chairman Dianne Feinstein of California are among the powerful Democrats who now advocate government intervention to dictate radio content more favorable to their party.”

According to Democratic strategist Bob Beckel, “Now some leading liberals, including Senate Majority Leader Harry Reid, have batted around the idea of reinstituting it because of the dominance of conservative talk radio. Sen. Feinstein said she was ‘looking at’ the idea of reviving it.” (Bob Beckel, “A Warning To Talk Radio,” USA Today, 7/12/07)

For conservatives, this will be a life-and-death struggle. Liberals now control the White House, the House of Representatives, and the Senate, providing the political left its most absolute hold on power since the 1960s.

But it is worse than that for conservatives. The dominant mainstream liberal media have executed a pronounced shift. The New York Times, Washington Post, the major TV networks, and Hollywood have gone from a media bias in favor of Democrats to outright collaboration. There was little critical difference between Barack Obama’s campaign web site and the New York Times’ editorial page.

Washington’s power makeup and the news media’s corruption leave conservatives with one big megaphone to spread the message: talk radio.

That’s what makes the upcoming battle so crucial. If Democrats can reinstitute the Fairness Doctrine, they will have a powerful weapon to bludgeon conservative talk radio to death.

During the 2008 campaign, Barack Obama didn’t publicly support re-imposition of the Fairness Doctrine, but his overall transition chief, John Podesta, heads a liberal think tank that supports it. And, perhaps most importantly, Obama’s transition chief for the Federal Communications Commission, which would enforce the doctrine, is Henry Rivera, who strongly supports the Fairness Doctrine.

Rivera, who sat on the FCC in the early 1980s, is known not only to be a Fairness Doctrine advocate, he also believes the FCC should be used to push for minority ownership of local radio stations.

Rivera has been chairman for more than a decade of the Washington-based Minority Media and Telecommunications Council. One of its goals is for the FCC to issue more licenses to minorities. “We strongly believe that the breathtaking changes in communications technology and the new global forms of media partnerships must enhance diversity in the 21st Century,” its mission statement says. Liberal-tending minority-run stations would not be very likely to run the Limbaugh show, probably preferring instead Air America‘s stable of right-hating broadcasters.

How Would a New Fairness Doctrine Work?

Based on complaints filed by liberals, once the doctrine is in place, FCC bureaucrats will begin monitoring broadcasts around the nation and insist that radio hosts include liberal content. Since the commission licenses each station, its power is absolute: Change the broadcast or lose your permit.

It is unclear how Democrats will write the new law or what they will call it. But conservatives know it will be pernicious because its principal aim — its only real purpose — will be to censor conservative talk radio.

Just look at the old policy. It went beyond forcing stations to present, as the regulation said, “contrasting viewpoints.” It also empowered the FCC to decide the topics discussed by broadcasters.

And there’s no reason to believe that the Democrats will attack only talk radio. Other than the Supreme Court, there’s nothing to prevent them from trying to attach the same rules to other media, including cable television and the Internet.

There is more trouble brewing. America is a litigious place, with virtually no limits on the filing of lawsuits in state and federal court. And there is no more litigious political movement than the left wing, which has spawned all sorts of legal think tanks and organizations that specialize in suing people.

These liberal trial lawyers will undoubtedly use a new Fairness Doctrine as the basis for lawsuits against stations, and perhaps against conservative commentators themselves, accusing them of breaking the law. What left-wing blogger would not like to see Rush Limbaugh led await in handcuffs from his Palm Beach, Fla., estate for failing to present balanced programming? What Are They So Scared Of?

For that matter, Obama’s Health and Human Services Secretary-designate, former Sen. Tom Daschle, would like to see just that.

Six years ago, Rush labeled Daschle — then Senate minority leader — an “obstructionist.” The preternaturally cool Daschle started whistling like a teapot.

“Rush Limbaugh and all of the Rush Limbaugh wannabes,” he said, “have a very shrill edge.… But what happens when Rush Limbaugh attacks those of us in public life is that people aren’t satisfied just to listen. They want to act … and so, you know, the threats to those of us in public life go up dramatically, on our families.”

Daschle also criticized conservative radio for igniting “an emotional movement in this country among some people who don’t know the difference between entertainment and politics, and who are then so energized as to go out and hurt somebody.” He said that he and his family were “worried” when Rush Limbaugh called him an “obstructionist.”

Illinois Democratic Sen. Dick Durbin told National Public Radio that his party was up against “station after station” of “right-wing screamers.” Arizona’s self-styled “maverick” GOP Sen. John McCain immediately dove in and compared Limbaugh to a circus clown, saying later that Rush ought to “have a sense of humor.”

The problem is that Limbaugh has a sense of humor. Liberals don’t. And for that, they want to punish us — and Rush — by forcing him and his colleagues off the air.

Listeners who tune into talk radio to hear a different perspective from that of Dan Rather or Katie Couric will hit the off button. Ratings will decline. Ad money will dry up, and talk radio will cease to exist, or simply limp along as an unworthy match for the big media. Democrats will have succeeded in stamping out the one remaining strong voice of dissent.

As Bruce Fein, the FCC’s general counsel in the 1980s, wrote in The Washington Times, “The Democratic Party intends to brandish the Fairness Doctrine to marginalize the influence of conservative talk-show hosts by making expression of their controversial views cost-prohibitive. Rush Limbaugh is their poster child. Democrats hope to better the instruction of their predecessors in making broadcasters shy from all conservative political viewpoints.”

It is not just a few rank-and-file Democrats who want the doctrine’s return, but Speaker Pelosi of California and the No. 2 Senate Democrat, Dick Durbin.

Democrats are not targeting just Limbaugh and Sean Hannity, two talk-radio titans who lead a list of nationally syndicated broadcasters and reach 87 million listeners each week. They are going after the scores of “little Rushes” who reach thousands of conservatives regionally every day from microphones from New York City to San Diego.

“Any of us who worked in radio before the old doctrine’s repeal remember how cumbersome it was,” radio host Mark Larson told HUMAN EVENTS. “Many stations would find it was not worth the hassles in production, tracking, essentially keeping score on left-vs.-right. In these days of tight budgets, many operators will figure it’s too cumbersome and expensive to do it ‘the proper way’ under new regs.”

Added Larson, a longtime radio fixture in San Diego, “That being said, I don’t think the new leaders would be that brazen to try to re-impose the same thing. Certainly they’ll come up with warm and fuzzy language to woo Americans ala ‘Children and Puppies Self-Esteem Act of 2008’. Censorship is censorship and that what any new doctrine would be. And just plain wrong. It’s also unnecessary. When the Fairness Doctrine was originally instituted there were several thousand fewer stations (radio and TV), no Internet or satellite.”

Larson is not alone. Right-leaning hosts across the country are warning audiences they may not have their shows to listen to in a few years.

They’re Aiming at Christian Talk Radio, Too

Said Iowa Christian broadcaster Jamie Johnson, “The Fairness Doctrine, if reinstated, would completely destroy the two radio formats that are most responsible for informing, energizing, and mobilizing the conservative movement: first, Christian radio, which promotes conservatism’s ‘traditional values’ ideals and second, talk radio, which promotes its ‘free enterprise’ and ‘limited government’ ideals.”

Johnson told HUMAN EVENTS that the Fairness Doctrine “would destroy Christian radio by forbidding station managers to broadcast Bible teachers who dare to preach against politically correct sins like homosexuality and abortion. Second, it would destroy talk radio by forcing managers to broadcast opinions with which their listeners disagree, breaking up any consistency of image that a station must maintain if it is to garner an audience and draw advertising revenue.”

Johnson asks, “What music station could financially afford to play country music during morning drive and then switch to alternative rock during afternoon drive? Even so, no talk station could keep an audience or successfully sell advertising by running Bill Bennett and Laura Ingraham in the morning, and then Bill Press and Al Franken in the afternoon.”

Talk-Radio’s Influence is Immense

Talk-radio’s influence is so huge, it’s hard to measure. It may not be able to make or break a presidential election. After all, Limbaugh, Hannity et al. opposed Barack Obama in the presidential election. But talkers can make or break an issue. They mobilized to stop President Bush’s Supreme Court nomination of Harriet Miers, whose commitment to conservative principles was vague at best. Bush withdrew the nomination amid furious opposition from the right. He then came up with Justice Samuel Alito — who has proven to be a solid, scholarly conservative.

Pelosi et al. are not only angling for more government control. The Center for American Progress, a liberal research group run by former aides to President Bill Clinton and funded in part by Bush-hater George Soros, put out a report in 2007 calling for an activist FCC and a chairman who would declare war on the owners of right-leading radio stations.

“Our conclusion is that the gap between conservative and progressive talk radio is the result of multiple structural problems in the U.S. regulatory system, particularly the complete breakdown of the public trustee concept of broadcasting, the elimination of clear public interest requirements for broadcasting, and the relaxation of ownership rules including the requirement of local participation in management,” the report said.

Also lurking is the idea that the FCC in an Obama Administration might resurrect the Fairness Doctrine on its own, without congressional approval. It then could expand the regulation to include the Internet under the concept of “network neutrality.” The phrase is a somewhat imprecise term for an ongoing debate over whom, if anyone, should monitor Internet content.

FCC Commissioner Robert McDowell, in an interview with the Business & Media Institute, said before the election that “This election, if it goes one way, we could see a re-imposition of the Fairness Doctrine by folks who are promoting it. I think it will be called something else, and I think it’ll be intertwined into the net neutrality debate.”

To those who believe a restarted Fairness Doctrine will be devoid of politics, Bruce Fein quotes from a book by liberal author Fred Friendly. In The Good Guys, The Bad Guys and The First Amendment, Friendly cites the words of Bill Ruder, an assistant secretary of Commerce under President Lyndon Johnson. “Our massive strategy,” said Ruder, “was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.”

The History of the Fairness Doctrine

The Truman Administration ushered in the Fairness Doctrine in 1949 out of fears that an expanding corporate America would monopolize the radio and TV airways with conservative, or anti-liberal, thought. Truman had just won the presidency outright a year before and was unloading a pile of “Fair Deal” pseudo-socialist legislation on Congress, including, for example, national rent control and health care.

A new Democratic majority rejected many of Truman’s left-wing ideas, but he did not need legislation to create censorship. Democrats controlled the FCC. It wrote the rules for broadcasters under the argument that the airways belonged to the public and thus their content could be controlled by the federal government.

Bruce Fein recalls that Democrats became alarmed that critics could use a burgeoning radio and TV market to attack their votes, so they pressed the FCC to write the doctrine. “The FCC was very responsive to what Congress wanted,” Fein told HUMAN EVENTS. “Politicians wanted to make sure that the airways were not used in a way that could defeat their candidates.”

The doctrine did not require “equal time.” That is a separate rule ensuring stations provided reasonable time to competing political candidates. But it did require contrasting viewpoints and dictated that stations cover “vitally important controversial issues of interest in the community served by the licensees.”

Of course the media landscape today is far different from the meager offerings in 1949. There were three TV networks and a smattering of local radio and television stations in the post-World War II era. In this new century, Americans can turn to hundreds of cable and radio channels, not to mention thousands of news and information Web sites. If anyone cannot find “contrasting viewpoints,” he is not trying.

For the next 35 years, the Fairness Doctrine became a club wielded by politicians and advocacy groups.

Fein said the FCC did not have the staff or time to monitor thousands of broadcasts on its own. Instead, it generally waited for a complaint to be filed and then did an investigation. But the way the doctrine really stifled free speech was that complainants would threaten the stations. They warned that if their views were not aired they could file a complaint with the FCC. Rather than spending money on legal fees and risking the lost of a license worth millions of dollars, stations often relented, or dropped the issue altogether.

“The broadcasters were smart enough to avoid this in the first place,” said Fein.

The rule received a boost in 1969, when a unanimous Supreme Court in Red Lion Broadcasting v. FCC ruled the Fairness Doctrine constitutional.

But the rationale in the Red Lion case isn’t applicable to the realities of today. That Supreme Court said, “Because of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the 1st Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”

Today, there are an almost unlimited number of radio stations on regular broadcast and satellite networks. Local stations, which broadcast both network and local programs, are in every city and many small towns. Thus, the factual basis of the Red Lion case no longer exists. The Fairness Doctrine, under any realistic legal analysis, is not constitutional.

The FCC tinkered with and strengthened the doctrine in the decade following the Supreme Court ruling. But all that stopped with the 1980 election of Ronald Reagan, who rode a landslide to Washington on a theme of deregulation, which included the FCC.

Fein arrived as the general counsel, working for Reagan’s appointed chairman, Mark S. Fowler, an attorney who had served in the President’s campaign. The two began dismantling the doctrine piece by piece. By 1987 it was gone.

“We thought it was contrary to free speech,” Fein said. “It was Ronald Reagan and deregulation. What was the government doing deciding what was fair?”

What’s more, how does a government bureaucrat, or the five-member commission, define a “contrasting viewpoint?” If someone does not like commentary on oil drilling, does the station then have to present views on nuclear power or sun power? “It was entirely arbitrary,” Fein said.

Democrats in Congress responded to Reagan by quickly enacting the doctrine into law. Reagan vetoed it.

The country seems to have done quite well since. Some citizens, bombarded by a 24-7 news cycle, yell ‘Uncle” in the grip of information overload. Yet, current-day Democrats are determined to dust off a relic.

How to Stop the Return of the Fairness Doctrine

Democrats have two avenues to restart government censorship. They appear to have sufficient votes in the House and Senate. Obama has said he sees no need for the Fairness Doctrine. But the new President is not about to veto a bill delivered up by the liberal leaders of his own party.

Or, the commission itself could adopt the rule. Obama has the power immediately to appoint one of the two Democrats on the panel as chairman, replacing Republican Kevin Martin. Commissioner Deborah Taylor Tate’s term expires in January. The President will nominate a Democrat, giving his party a 3-to-2 majority and the ability to re-impose the Fairness Doctrine even if Congress doesn’t.

And, as noted, Henry Rivera, who wants the Fairness Doctrine reinstated, is heading Obama’s transition team that will recommend the next chairman.

How can conservatives beat back legislation and a Democratic FCC?

The radio hosts themselves are sounding the alarm daily, trying to get listeners to pressure lawmakers. The hope is there are enough center-right Democrats to join Republicans in defeating any bill.

On January 8, Representatives Mike Pence (R-Ind.) and Greg Walden (R-Ore.) and Senators Jim DeMint (R-S.C.) and Jim Thune (R-S.D.) introduced new bills to block the revival of the Fairness Doctrine. (Pence’s House bill is HR-226. DeMint’s senate bill is S-340). The House bill already has over 100 co-sponsors, and the Senate bill has 24.

Similar to Pence’s bill of last year, “The Broadcaster Freedom Act” would bar the FCC from adopting any Fairness Doctrine-type rules. But neither Speaker Pelosi nor Senate Majority Leader Harry Reid is likely to allow a vote on this bill. It may — again — fall to conservative activists to defeat the return of the Fairness Doctrine by supporting Pence and DeMint in their fight.

While Pence prepares for battle in Congress, conservative research organizations are issuing reports to back his arguments.

Three Liberal ‘Fairness’ Myths

The Culture and Media Institute of Brent Bozelle’s Media Research Center released a report earlier this year, “Unmasking the Myths Behind the Fairness Doctrine.”

The Institute framed the debate this way: “The controversy touches on America’s most fundamental civic values. Do we still cherish freedom of speech, or are some of us succumbing to the tyrannical impulse to stifle the speech of political adversaries? Do our leaders trust us to accept responsibility to govern ourselves, or do they wish to control which information we receive? “

The report attempts to correct what the center considers three false arguments for the doctrine.

Myth 1: Limited radio frequencies allow conservative talk radio to dominate the airways. But, says the report, “Americans have never enjoyed so many professional sources of news and opinion.” There are dozens of local news shows, 10 separate 24-hour cable news and public affairs channels, 1,400 daily newspapers and more than 2,200 radio stations airing news/talk.

Myth 2: Americans are not hearing both sides of the debate. Liberal voices are shut out. The report says liberal thought was well represented via Air America and its 55 stations, plus 800 public radio stations. Additionally, the nation’s largest newspapers, the TV networks and news weeklies are overwhelmingly liberal. Myth 3: The Fairness Doctrine would increase public discourse. Says the report, “When the Fairness Doctrine was in effect, talk radio avoided controversial topics. Most stations programmed only general talk and advice.” It concludes, “America has so many sources for news and information available that no federal regulation of broadcasting content can possibly be justified on the grounds of public interest. The Fairness Doctrine has an ugly history of political abuse directly intended to restrict the free exchange of ideas. As liberals propose and agitate for a resumption of the Fairness Doctrine, history may repeat itself.”

President John Kennedy, for example, used the doctrine to stifle debate on the Nuclear Test Ban treaty, a major administration initiative. The Democratic-controlled FCC ruled that broadcast segments opposing the treaty had to be followed by one supporting it. Later, the Democratic National Committee under President Lyndon Johnson prepared an instruction manual for allies to file fairness complaints with the FCC.

The MRC is not alone. The American Center for Law and Justice, the right’s answer to the American Civil Liberties Union, vowed this year to make stopping Fairness Doctrine II a top priority.

“The proposal is more than troubling,” said a statement from the center, which is led by evangelical lawyer Jay Sekulow. “We believe it is completely unnecessary and unconstitutional. There are plenty of broadcast opportunities available for competing viewpoints to be expressed. We don’t need the government’s telling us what we have to discuss and how to discuss it. On the constitutional front, the ACLJ believes that re-instituting the ‘Fairness Doctrine’ would result in compelled speech — representing a fundamental violation of the 1st Amendment of the U.S. Constitution. At the ACLJ, we are mobilized to deal with this legislative threat.”

Although not mentioned in the media center’s report, one of the most infamous FCC crackdowns came against Christian fundamentalist Carl McIntire and his radio station, WXUR. The FCC barraged McIntire with complaints for not presenting what it deemed “contrasting viewpoints.” Finally, in 1973, the FCC refused to renew the station’s license. McIntire, a strong Christian values and anti-Communist voice, was off the air, thanks to the federal government.

Can’t happen today? The current-day Democrats are already planning congressional hearings and investigations into talk radio and will target companies, perhaps including the networks syndicating conservative talk radio, for punishment.

Whether Democrats put a new censorship doctrine in law or regulation, or both, conservatives will surely challenge it in court as an affront to 1st Amendment guarantees of free speech. The Supreme Court, with a four solid conservatives and one right-leaning justice, is a far different body from the liberal 1969 court that upheld the rule 8 to 0.

At present, Fairness Doctrine opponents do not have a majority of Americans on their side, according to an August poll by Rasmussen. The pollster found that 47% “believe the government should require all radio and television stations to offer equal amounts of conservative and liberal political commentary,” and 39% said the government should keep its hands off the content of radio and TV.